Citation Nr: 1124095
Decision Date: 06/24/11 Archive Date: 06/29/11
DOCKET NO. 10-21 943 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUES
1. Entitlement to service connection for a low back disability.
2. Entitlement to a compensable rating for right knee patellofemoral pain syndrome.
3. Entitlement to a compensable rating for left knee patellofemoral pain syndrome.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
S. Armstrong, Associate Counsel
INTRODUCTION
The appellant is a Veteran who served on active duty from July 1996 to July 2000. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for right and left patellofemoral pain syndrome, rated 0 percent and effective February 27, 2008, each, and denied service connection for a low back disability.
FINDINGS OF FACT
1. A chronic low back disability was not manifested in service, and it is not shown that the Veteran has, or during the pendency of this claim has had, a chronic low back disability.
2. The Veteran's service-connected left knee disability has been manifested by symptoms no greater than pain and range of motion from 0 degrees extension to 130 degrees flexion; lateral instability or subluxation is not shown.
3. Prior to June 27,, 2008 the Veteran's service-connected right knee disability was manifested by complaints of pain and full range of motion; lateral instability or subluxation was not shown.
4. From June 27, 2008 the Veteran's service-connected right knee disability has been manifested by arthritis with extension limited by 5 degrees and flexion to 125 degrees; lateral instability or subluxation is not shown.
CONCLUSIONS OF LAW
1. Service connection for a low back disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010).
2. A compensable rating for left patellofemoral pain syndrome is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (Codes) 5003, 5256-5262 (2010).
3. The Veteran's right patellofemoral pain syndrome warrants "staged" ratings of 0 percent prior to June 27, 2008, and (an increased) 10 percent from that date. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Codes 5003, 5256-5262 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A. Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
Low back disability
The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A March 2007 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. It also informed the Veteran of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record and has not alleged that notice in this case was less than adequate.
The RO arranged for a VA examination in April 2010. The examination is adequate as it considered the evidence of record and the reported history of the Veteran, was based on an examination of the Veteran, noted pertinent history and all findings necessary for a proper determination in the matter, and explained the rationale for the opinion offered. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes).
Knee ratings
As the rating decision on appeal granted service connection and assigned disability ratings and effective dates for the awards, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A May 2010 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating and readjudicated the matter. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record and has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ("Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues").
The RO arranged for a VA examination in April 2010. The examination is adequate as the examiner expressed familiarity with the history of the Veteran's disabilities, and conducted a thorough examination of the Veteran, noting all findings necessary for proper determinations in the matters. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. He has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claims.
B. Legal Criteria, Factual Background, and Analysis
The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claims.
Low back disability
Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).
In order to establish service connection for a claimed disability, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).
When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
On June 1995 service entrance examination the Veteran's spine was normal on clinical evaluation.
A September 1998 STR notes that the Veteran complained of back pain for 3 months prior. The pain was noted to be paraspinal and non-radiating. The assessment was possible mechanical low back pain; Motrin was prescribed. A later record noted an assessment of mechanical low back pain vs. paraspinal muscle strain vs. latissimus dorsi strain.
On April 2000 service separation examination the Veteran's spine was normal on clinical evaluation. It was noted that the Veteran had occasional mechanical low back pain but was able to perform all of his duties and had no current disability.
A May 2000 report of medical assessment notes that the Veteran did not have any medical complaints at the time.
A May 2008 VA outpatient treatment record notes that the Veteran complained of low back pain since 1999 rated 5-6/10 initially, but currently was rated 4-5/10. There was mild tenderness over the lower back. The diagnosis was low back pain with suspected herniated disc.
An April 2009 VA outpatient treatment record notes that the Veteran had low back pain. The assessment was low back pain with 2008 MRI that revealed no specific problem except for transitional lumbar vertebrae.
On April 2010 VA examination the Veteran reported he had low back pain that had its onset in 1999 after he lifted a heavy bowl in the mess hall. The Veteran reported a history of fatigue, stiffness, spasms, and pain. The diagnosis was normal clinical examination of the lumbar spine, normal MRI of the lumbar spine, and normal plain X-rays of the thoracic and lumbar spine. The examiner noted that the Veteran experienced low back pain and opined that it was less likely as not that the Veteran's current complaint of low back discomfort was related to his treatment for back pain in service. He noted that while the Veteran's STRs documented treatment for low back discomfort, the current examination was negative and there was no disability to which he could attach a diagnosis and that any problem the Veteran had in the past appeared to be quiescent presently.
The threshold matter that must be addressed here (as in any claim seeking service connection) is whether or not there is competent evidence that the Veteran actually has the disability for which service connection is sought (a low back disability). In the absence of proof of such disability there is no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
Regarding the Veteran's complaints of low back pain in service, such was treated conservatively with no chronic pathology or residual disability noted. Service separation examination noted low back pain but likewise found no pathology or chronic disability entity. Accordingly, a chronic low back disability was not manifested in service.
Furthermore, the evidence of record does not show that the Veteran has, or during the appeal period has had, a low back disability. The April 2010 VA examination noted a normal clinical examination of the lumbar spine, normal MRI of the lumbar spine, and normal plain X-rays of the thoracic and lumbar spine and that there was no diagnosis of low back disability.
The Veteran is competent to report that he has low back pain. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007); Barr v. Nicholson, 21 Vet. App. 303, 308-309 (2007). However, on the question of whether the Veteran has a current back disability the Board finds that negative diagnostic testing and the conclusion of a VA medical provider are more probative than the Veteran's lay assertions that his low back pain constitutes a low back disability. The Veteran has complained (and diagnosis has been made) of low back pain; however, pain alone (absent nexus to disease or injury in service, and there is none here) is not a compensable disability for which service connection may be granted. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). There has been no evidence since received that shows or suggests the presence of a low back disability, and the Veteran has not identified any pertinent evidence in the matter that remains outstanding. Consequently, the threshold requirement necessary to substantiate the claim of service connection for a low back disability is not met. Without a finding of a current low back disability, there is no valid claim of service connection for such disability. See Brammer, supra.
In light of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim. Therefore, the benefit of the doubt rule does not apply; the claim must be denied.
Knee ratings
In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities which are rated according to the specific criteria therein. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more of less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45.
Traumatic arthritis is rated as degenerative arthritis under Code 5003. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When the limitation of motion is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint affected by limitation of motion, to be combined, not added under Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Codes 5010-5003.
Flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Code 5260.
Extension of a leg limited to 5 degrees or less warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Code 5261.
Flexion of the knee to 140 degrees is considered full and extension to 0 degrees is considered full. See 38 C.F.R. § 4.71a, Plate II.
In addition, the rating schedule provides for a 10 percent rating for slight recurrent subluxation or lateral instability of a knee, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Code 5257.
The VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1997).
On December 2007 examination (on behalf of VA) the Veteran reported that he had pain localized to the patellar area of both knees which was brought on by walking two blocks and relieved by rest. He had pain for 2 to 3 hours at a time. He denied swelling or erythema. He reported joint stiffness on prolonged standing or walking. There was no swelling, weakness, heat, redness, giving way, lack of endurance, locking, fatigability, or dislocation. The Veteran had pain on prolonged walking and climbing stairs. His gait was within normal limits. Examination of each knee revealed no edema, effusion, weakness, tenderness, redness, heat, subluxation, or guarding of movement. Range of motion testing of the knees revealed full range of motion bilaterally with no additional limitations from pain, fatigue, weakness, lack of endurance, or incoordination on repetitive use. There was crepitus over the patella bilaterally. Stability testing was within normal limits bilaterally. X-rays were within normal limits. Bilateral patellofemoral pain syndrome was diagnosed.
A May 2008 VA outpatient treatment record notes that the Veteran had a diagnosis of right knee pain status post torn meniscus repair with occasional swelling. Range of motion of the knees was full bilaterally. The diagnosis was knee pain without medication.
A June 27, 2008 VA outpatient treatment record notes that the Veteran was seen as a walk-in with complaints of right knee pain rated 4-5/5 with intermittent "giving out." Slight right knee swelling was noted. The plan was to X-ray the knee, and if that was negative to get an MRI. The assessment was right knee pain status post remote surgery on right knee meniscus.
An August 28, 2008 VA outpatient treatment record notes that the Veteran reported he had a right knee meniscectomy in 2006 and had experienced pain ever since which was sharp to dull. He reported locking symptoms with a sensation of giving way. Active range of motion of the right knee was from 0 degrees extension to 130 degrees flexion. The right knee was stable to varus/valgus stress and there was negative Lachman's and McMurray's. It was noted that an MRI found mild osteoarthrosis. The assessment was osteoarthritis to the right knee.
A December 2008 VA outpatient treatment record notes that the Veteran was seen for follow-up of right knee osteoarthritis and chondromalacia patella and left knee pain. He reported left knee pain on squatting and stair use. Examination of the knees revealed tenderness to palpation over the lateral and medial facets of the patellae without edema or effusion. Active range of motion was from 0 degrees extension to 130 degrees flexion bilaterally. The knees were stable to varus/valgus stress and McMurray's and Lachman's were negative. There was a positive patellar grind test bilaterally. X-ray of the left knee revealed no bony abnormality or fracture. The assessment was osteoarthritis of the right knee and bilateral chondromalacia patella.
A January 2009 VA outpatient treatment record notes that the Veteran was seen for early osteoarthritis of the bilateral knees with a complaint of anterior knee pain. He denied locking, swelling, or instability. Examination revealed positive patellar grind tests with stable ligaments, no effusion, and negative McMurray's. X-rays were interpreted as revealing moderate arthrosis. MRI of the right knee revealed mild osteoarthrosis and chondromalacia of the lateral tibiofemoral compartment. The impression was osteoarthritis of the bilateral knees, right worse than left. A patella sleeve brace was prescribed for use as needed.
An April 2009 VA outpatient treatment record notes that the Veteran had right knee pain, osteoarthritis, chondromalacia, and had been using a knee sleeve although he still experienced pain and giving way. There was full range of motion of the knees bilaterally. The assessment was knee pain.
On April 2010 VA examination the Veteran reported worsening knee pain of the right knee with limited motion and increasing giving way and that his left knee had not "gotten worse." The Veteran used medication and a brace with good response. Regarding both knees the Veteran endorsed giving way and pain, without deformity, instability, stiffness, weakness, incoordination, decreased speed of joint motion, dislocation or subluxation, locking, effusion, inflammation, or flare-ups. He was able to stand for one hour and walk between a quarter of a mile and one mile. He always wore a soft brace. The Veteran's gait was noted to be slightly antalgic on the right. Examination of the bilateral knees revealed no crepitation, clicks or snaps, grinding, instability, patellar abnormality, or pain on straight leg raising. Range of motion testing revealed left knee extension to 0 degrees and flexion to 140 degrees and right knee extension to 5 degrees and flexion to 125 degrees. There was no pain or additional limitations after repetitive motion. There was no ankylosis of the knee joints. The examiner noted that there was a significant voluntary co-contraction of the right knee which limited the examination (especially for flexion end point) and that there was a component of pain behavior. Left knee X-ray revealed no abnormality. Right knee MRI revealed mild osteoarthrosis. The Veteran was employed with the Texas Department of Agriculture and lost one week of work in the year prior due to back and knee pain. The diagnosis was mild osteoarthritis and chondromalacia of the right knee by MRI with evidence of previous meniscus tear (with physical findings exaggerated given the degree of objective pathology), normal examination and X-rays of the left knee, and no evidence of bilateral patellofemoral syndrome. The examiner noted that the impact on occupational activities included decreased mobility and strength with pain.
In May 2010 correspondence the Veteran stated that his right knee experienced more symptoms compared to his left knee such as pain, buckling, and increased pain on prolonged standing (which precluded certain activities).
Knee disabilities may be rated under Codes 5257 (for recurrent subluxation or lateral instability), 5003 (for X-ray confirmed arthritis with less than compensable limitation of motion), 5260 (for limitation of flexion), 5261 (for limitation of extension) or for combinations of Code 5257 and 5010-5003 or 5257 and 5260 and/or 5261. As there is no evidence of pathology such as ankylosis, dislocated or removed semilunar cartilage, or tibia and fibula involvement, ratings under Codes 5256, 5258, 5259, and 5262 are not warranted. As the disabilities are currently rated noncompensable, the focus is on the criteria that would provide for a compensable rating.
Right Knee
Prior to June 27, 2008 the Veteran's right patellofemoral syndrome was manifested by full range of motion, with no objective evidence of instability. Arthritis was not shown. Consequently, compensable ratings under Codes 5003, 5257, 5260, or 5261 are not warranted. At no time prior to August 28, 2008 did the Veteran's right knee disability warrant a compensable rating.
From June 27, 2008, the Veteran's right knee disability is reasonably shown to have been manifested by arthritis (confirmed by MRI) with limited (to varying degree, but less than compensable under Codes, 5260, 5261) motion (and with no objective findings of instability). The Board notes that the MRI was apparently done sometime after the June 27, 2008 date; however, it was in follow-up to the June 27, 2008 walk-in outpatient visit, and the MRI findings may reasonably be considered to have been present as of the June 27, 2008 date. An August 28, 2008 VA outpatient treatment record confirmed that the Veteran had less than full right knee flexion and right knee osteoarthritis. While there was a notation at one point during this period that he had full range of right knee motion, such improvement was not sustained, as later VA treatment records again show noncompensable limitations of right knee extension and flexion.
The Board notes the Veteran's accounts that his knee "gave out," and that a soft knee sleeve/brace was prescribed. However, objective testing for instability on examinations has consistently been negative (including when the patella sleeve brace was prescribed). The Board finds that the negative objective testing for instability is more probative than the Veteran's accounts of such, which are self-serving and deemed not credible . Consequently, a separate compensable rating for lateral instability/subluxation under Code 5257 is not warranted. Accordingly, from June 27, 2008 the Veteran's right knee disability warrants a 10 percent (maximum for 1 joint) schedular rating under Code 5003 (for arthritis with some limitation of motion, but to a degree less than compensable under Codes 5260, 5261). In the absence of compensable limitations of motion and any objective evidence of instability, a schedular rating in excess of 10 percent is not warranted.
Left knee disability
The Veteran's left knee disability has been manifested by range of motion from 0 degrees extension to 130 degrees flexion. Accordingly, a compensable rating under Code 5260 (for limitation of flexion) or Code 5261 (for limitation of extension) is not warranted. Furthermore, while a knee sleeve/brace has been prescribed (for use as needed), objective testing for instability on examinations and in the course of treatment has consistently been negative; because the Veteran's accounts of instability are self-serving and inconsistent with clinical testing, they are deemed not credible. Consequently, a compensable rating under Code 5257 for lateral instability/subluxation is not warranted. While a January 2009 VA outpatient treatment record notes that the Veteran had "osteoarthritis of the bilateral knees," such diagnosis is not supported by diagnostic studies. Diagnostic testing (X-rays) has not shown arthritis of the left knee. Because the criteria of 38 C.F.R. § 4.71a, Code 5003 are for arthritis shown by X-ray, those criteria are not for application with respect to the left knee. In short, the left patellofemoral pain syndrome is not shown to have met the criteria for a compensable rating under any of the applicable diagnostic codes at any time during the period under consideration. Consequently, a compensable rating for left patellofemoral pain syndrome is not warranted.
The Board has also considered whether referral for extraschedular consideration is warranted. There is no objective evidence or allegation in the record of symptoms or impairment of function of either knee disability not encompassed by the schedular ratings assigned. Therefore, those criteria are not inadequate, and referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008).
Finally, the Veteran works for the Texas Department of Agriculture and has not alleged unemployability due to his service-connected bilateral knee disability. Hence, the matter of entitlement to a total rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009).
ORDER
Service connection for a low back disability is denied.
A "staged" increased (to 10 percent, but no higher) rating is granted for the Veteran's right patellofemoral syndrome from June 27, 2008, subject to the regulations governing the payment of monetary awards; a compensable rating prior to that date is denied.
A compensable rating for left patellofemoral syndrome is denied.
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George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs